The Hawaiian gazette., 1887-09-06

On this lease GnlS Qeeu Is euOlOISeu.
"Know all men by these presents
that the foregoing indenture of lease
made by and between John S. Nc
Grew of the one part and Kan On of
the other part, and the term therein
granted is hereby cancelled and made
void for non-payment of rent, and
possession is hereby restored to the
lessor. without prejudice, however,
against any collection by distress or
otherwise, of all rents now unpaid
and owing from the within named
Kan On to said John S. McGrew by
virtue of, and under the lease of and
term in the same premises granted to
Ating, dated August 18th, 1881, and
by said Ating assigned to the said
Kan On and the last mentioned lease;
and the terms thereby granted are for
the same reasons and consideration
hereby cancelled and made void. In
witness whereof the said parties have
hereto set their hands and seals this,
18th day of July, AID, 1856"
KAN OK. Seal.
JOHN S. McGREw Seal.
Acknowledged before W. A. Whit
ing, July II, 1856.
The defendant, McGrew, claimed
that by virtue of this last mentioned
deed, he was entitled to the posses
sion of the demised premises against
the compliments, either as a pur-
chaser for value, without notice of the
mortgage or as landlord having en-
tered for forfeiture, by non-payment
of rent. He also claimed that the
compliments ought not,as against him
recover any moneys advanced profess
eddy, under the mortgage, after the
expiration of the one year mentioned
therein, and that all moneys thereafter
received by Ho Yeng from the sale of
rice on account of Kan On should be
in reduction of the mortgage debt.
I am of opinion that the mortgage
having been duly recorded, the de
PENDANT, McGrew, must be held to
have had notice thereof.
[ am also of opinion that that the
so-called surrender of the 18th day of
July, 1856, is an assignment of the de
fendant, Kan On's equity of redemp-
ton in the lands comprised in the lease,
and consequently that the defendant,
McGrew, holds the same subject to the
mortgage; and that the crop harvested
since the commencement of this suit,
and the subject of the interlocutory
injunction granted herein, is also sub
ject to the mortgage.
l am also of opinion that the mort
gage does not cover advances made
subsequent to the LIST day of October,
1884, but that the defendant, McGrew,
is not entitled to have the amounts
received by Ho Yeng subsequent to
that date, from the sales Of rice, ap-
piled in satisfaction of the mortgage
debt.
Being therefore, of opinion that the
defendant, McGrew, cannot be con
sidered to be in possession under the
alleged forfeiture for non-payment of
rent, the question as to whether suf-
fcient tender of, or offer to pay the
amount alleged to be due, does not
arise.
1 therefore, find that the complain
ants are entitled to relief under their
bill, and order and adjudge as fol-
lows:
That an account be taken of what was
due to Ho Yeng on account of princi-
pal and interest accrued by virtue of
the said mortgage, on the LIST day of
October, 1884, and that the said de-
PENDANT, Kan On, be decreed to pay
the same to the compliments with in
terest thereon at the rate of nine per
cent per annum, up to the time of
taking such account, and that the said |
Kan On do pay the amount found to !
be due, within seven days from the
date of the confirmation of the mas
ter's report, and in default of such |
the right or equity of re-
demption of all parties in the prem
Uses comprised in said mortgage be |
forever barred, and the said property, |
the crop harvested, be sold |
at pubic auction, and the proceeds be !
applied in and towards satisfaction of |
the amount so found to be due, pro-
vided that if sufficient to pay the said |
amount be realized from the sale of |
the mortgaged property not comprised |
in the lease from the defendant, Nc
Grew, of the 18th August, 1881, to |
satisfy the said amount. the property |
comprised in the said lease, and the |
said crop, and the proceeds thereof |
shall be discharged from the said |
mortgage and from all claims there
under
Ireserve further direction and costs, |
parties to be at liberty to apply as
they may be advised.
Ashford & Ashford and w. A. Kin
ney for plaintiffs; Paul Neumann and |
f. NJ Hatch for defendants.
Honolulu, January Is, 1887.